THE FEDERAL COURTS LAW REVIEW‡ Volume 10 2017 THE UNANIMITY RULE: “BLACK SWANS” AND COMMON QUESTIONS IN FLSA COLLECTIVE ACTIONS Allan G. King* & Andrew Gray** “I think everyone has a little black swan in them, it’s just a matter of when you let it out.”1 INTRODUCTION ............................................................................. 2 I. WHAT IS A COLLECTIVE ACTION, AND HOW ARE THEY TRIED? .......................................................................... 8 II. THE PLAINTIFF’S BURDEN OF PROOF IN MULTI-PLAINTIFF FLSA CASES. ........................................................................ 17 III. ARE A COURT’S DECISIONS TO CONDITIONALLY CERTIFY AND REFUSAL TO DECERTIFY A COLLECTIVE ACTION SUFFICIENT TO SUPPORT AN AGGREGATE SUBMISSION? ...... 20 IV. WHAT FURTHER INQUIRY IS NECESSARY TO JUSTIFY AN AGGREGATE SUBMISSION? .................................................... 24 V. THE UNANIMITY RULE IN PRACTICE AND HOW IT CAN BE IMPLEMENTED AT TRIAL. ...................................................... 29 ‡ The Federal Courts Law Review is a publication of the Federal Magistrate Judges Association. Editing support is provided by the members of the Mississippi Law Journal. * Allan G. King is a shareholder in the Austin office of Littler Mendelson, P.C. He holds a B.A. degree from the City College of New York, an M.S. and Ph.D. in economics from Cornell University, and a J.D. from the University of Texas School of Law. ** Andrew Gray is an associate in the Austin office of Littler Mendelson, P.C. He holds a B.A. from The University of Texas at Austin, and a J.D. from the University of Texas School of Law. 1 Interview by Christina Radish with Mila Kunis, Actress (Nov. 23, 2010), http://collider.com/mila-kunis-interview-black-swan/ [https://perma.cc/36NJ-WFQF]. 1 2 FEDERAL COURTS LAW REVIEW [VOL. 10 A. Rule 50 Provides a Necessary, but Not Sufficient, Test for an Aggregate Submission. .................................. 29 B. The Unanimity Rule Provides a Sufficient Condition. ... 30 VI. REFORMING THE CONDITIONAL CERTIFICATION AND DECERTIFICATION INQUIRIES IN LIGHT OF THE UNANIMITY RULE ................................................................. 34 CONCLUSION .............................................................................. 36 INTRODUCTION Common questions with common answers are the sine qua non that keeps aggregate litigation fair and efficient. In some class actions, common answers are intrinsic to both the factual circumstances and the relief requested. For example, a pilot’s negligence affected either all or none of the passengers on a crashed airplane. Similarly, the prospectus, which all stock purchasers relied upon, either did or did not contain false statements. The test challenged by rejected job applicants either did or did not adversely impact the applicant pool as a whole. In these examples, liability turns on how a jury characterizes the singular event that animates the lawsuit. Unlike the above examples, claims under the Fair Labor Standards Act (FLSA) do not typically stem from singular events. Logically, a single employee claiming unpaid overtime does not guarantee that similar employees have the same issue. Likewise, some employees may have been paid less than the minimum wage, while others may not have. Although these cases do not challenge singular events, aggregate litigation in the form of a collective action, may still be appropriate. These actions are viable if the factual similarity among discrete events would cause any reasonable jury to return a common answer regarding all members of the collective. This Article is concerned with how courts identify these cases and submit them to the jury. Specifically, how a court can find “black swans” that preclude a jury from returning a common answer.2 Like Kunis’s inner ballet 2 The “black swan” is a metaphor describing an event that comes as a surprise, but is then rationalized in hindsight as unsurprising. The term was adapted from historical analysis in Europe, where, for over 1,500 years, black swans were not 2017] THE UNANIMITY RULE 3 dancer, this Article asserts that black swans live inside many collective actions, as obstacles to the fairness and efficiency the Supreme Court has strived for.3 Unlike aggregate litigation under virtually all other statutes, collective actions under the FLSA are distinct from Rule 23 of the Federal Rules of Civil Procedure.4 The Federal Rules specify a highly structured inquiry for determining the viability of a class action, all of which is reviewable by an appellate court.5 In contrast, § 16(b) of the FLSA, which permits a plaintiff to sue on behalf of others who are “similarly situated,” and consent to become “party plaintiff[s],” provides no criteria or regulatory guidance on how a court may discern whether employees fit this description.6 Further, it provides for no appellate review of the court’s decision in that regard.7 Consequently, district courts have fashioned a common law procedure pertaining to FLSA collective actions. Yet, this common law rulemaking lacks two attributes critical to honing efficient and fair rules. First, because district courts rarely try FLSA collective actions, most courts never experience how well or poorly these common law procedures identify cases that can be adjudicated thought to exist. No one would have predicted the discovery of a black swan. This belief quickly changed when Dutch explorer Willem de Vlamingh discovered a black swan on the west coast of Australia. See Alireza Gharagozlou, Cordelia Returns – Using Letters of Credit to Reduce Borrowing Costs, 34 U. DAYTON L. REV. 305, 344-45 (2009) (providing a brief history of the black swan theory). 3 Justice Scalia noted that the Supreme Court’s lone guidance on collective actions served one valid purpose: to increase the efficiency in trying these cases. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 180 (1989) (Scalia, J., dissenting) (“In the end, the only serious justification for today’s decision is that it makes for more efficient and economical adjudication of cases—not more efficient and economical adjudication of the pending case, but of other cases that might later be filed separately on behalf of plaintiffs who would have been perfectly willing to join the present suit instead.”). 4 See, e.g., Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 993 (C.D. Cal. 2006) (distinguishing FLSA collective actions from Rule 23 class actions). 5 FED. R. CIV. P. 23(f) (“A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule . .”). 6 Fair Labor Standards Act of 1938 § 16(b), 29 U.S.C. § 216(b) (2012). 7 Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 932 (5th Cir. 2005) (“[A]s the district court observed, this case involves a ‘garden-variety’ § 216(b) FLSA action and is not a rule 23 class action, so [the interlocutory appeal provisions of Rule 23 are] inapplicable.”). 4 FEDERAL COURTS LAW REVIEW [VOL. 10 collectively.8 Roughly 2,500 FLSA collective actions are filed each year.9 Of those, a small fraction reach a jury, and even fewer still are reviewed by an appellate court.10 Thus, there is limited feedback whether common law principles accurately identify cases that can be tried and submitted to a jury in the aggregate.11 Of the few collective actions that result in a jury trial, even fewer lead to a reported decision from which judicial colleagues can learn.12 Yet, this feedback is essential to ensure the best-crafted rules survive and those that lead courts astray are discarded. As Professor Frederick Schauer observed: If in fact concrete cases are more often distorting than illuminating, then the very presence of such cases may 8 See Joseph W. Bellacosa, Cogitations Concerning the Special Prosecutor Paradigm: Is the Cure Worse than the Disease?, 71 ALB. L. REV. 1, 12 (2008) (“The genius of the common law process can be tapped into to appreciate the helpful methodology of trial, error, correction, and interstitial small steps supported by healthy respect for the principle of stare decisis . .”). 9 LexisNexis CourtLink, Nature of Suit Strategic Profile (listing the total numbers of FLSA collective actions filed between 2012 and 2016 as 2545, 2473, 2773, 2592, and 2338 cases filed, respectively). 10 For example, a Lexis search in the comprehensive federal courts database of “FLSA w/p “collective action” w/p trial but not “trial court” and date (geq (01/01/2016) and leq (12/31/2016)” identified 72 cases, of which two reported the results of a trial, one of which was a bench trial. E.g., Galdo v. PPL Elec. Utils. Corp., No. 14-5831, 2016 U.S. Dist. LEXIS 114545 (E.D. Pa. Aug. 26, 2016); Lopez v. Setauket Car Wash, No. CV-12-6324, 2016 U.S. Dist. LEXIS 80820 (E.D.N.Y. June 14, 2016). 11 By an “aggregate submission,” we mean a jury interrogatory that constrains the jury to return the same answer for all members of the collective action. 12 Rare indeed is the candid discussion by the district court in Johnson v. Big Lots Stores, Inc. regarding how, by relying on traditional criteria to decide conditional certification and decertification, the court was led to try a collective action that eluded any possible verdict. 561 F. Supp. 2d 567, 587-88 (E.D. La. 2008) (“After the Court considered all of the evidence that the parties submitted, it became obvious that it could not draw any reliable inferences about the job duties of plaintiffs as a class. It would be an injustice to proceed to a verdict on the merits that results in a binding classwide ruling based on such disparate evidence . A collective action is appropriate when there are common issues of fact and common issues of law. Thus, when there is agreement between the parties about what employees did, or there is a reliable showing that employees performed ‘substantially similar work,’ a court may properly and easily try plaintiffs’ claims collectively .